Clickless approvals don't qualify as 'reasonable notice' for terms of service

We do it all the time: We're so anxious to start using a new app or Web service that we blow right past the "terms" link without glancing at what it is we may actually be agreeing to. Down the road, we realize we didn't get what we expected, or we're unpleasantly surprised in some other way. Our complaints to the vendors go nowhere; they just point to some obscure paragraph buried deep in a 10,000-word terms-of-service agreement.

"But, but... you didn't tell me." In a recent case, the Ninth Circuit of the U.S. District Court of California ruled that such agreements apply only if the person took the affirmative action of clicking an "I agree" box, and only if it would be reasonable for a person to anticipate such a rule. As reported in an August 19, 2014, post on the Public Citizen blog, users aren't bound to a service's terms when they are presented only as a link on the bottom of a page. Absent an "I agree" checkbox and other reasonable attempts to provide users with notice of the terms' existence, they simply don't apply.

In Nguyen v. Barnes & Noble, the retailer tried to enforce an arbitration clause that was included in terms that required no overt act of acknowledgement by customers. So without a click, those terms won't stick.